Unilateral War Making by the Executive (Updated)

The Congress shall have Power . . . To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; – Article I, Section 8

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment. – Article II, Section 2

It’s not a good feeling agreeing with Dennis Kucinich. Finding myself on the same side of an issue as Kucinich makes me seriously reconsider my opinion. But as they say, even a bind, deaf, paralyzed, rabies-afflicted squirrel finds a nut every now and again.

It’s less distressing to disagree with Charles Krauthammer. He’s usually spot on, but he tends to go off the rails when it comes to foreign policy. Not always, mind you, but in Krauthammer you can see the legitimate difference between neoconservatism and traditional conservatism. Last night he had this to say about the War Powers Act and President Obama’s war hostilities kinetic military action in Libya:

KRAUTHAMMER: I understand why Congress wants to retain prerogatives, as does the president. I’m not surprised that Durbin would act this way. I am surprised that so many Republicans are jumping on the war powers resolution. They will regret it. If you have a Republican in office, you have isolationists Democrats trying to restrain his exercise of his powers under constitution and the Republicans aren’t going to like it.
I would not truck in war powers resolution. I have also think the administration’s defense of what it is doing is extremely week and misguided. Obama’s answer essentially is well, the resolution is out there. But it’s not relevant because it isn’t really a war, which is absurd.

BAIER: We’re not in hostilities.

KRAUTHAMMER: Right. What he should say I, like my other predecessor, I do not recognize the legality of this act and its authority over the presidency. That’s where he should make his stand.

BAIER: When he was Senator Obama he spoke the opposite.

KRAUTHAMMER: And as a president he is implicitly supporting the resolution saying it doesn’t apply here. It implies if it were a real war, as he pretends it’s not. I have to comply. No president ought to do that.

I agree with him with regards to Obama’s duplicity. I also share his skepticism about the War Powers Act. But he’s wrong about the rest.

Above I quoted the relevant portions of the Constitution as it pertains to declaring and making war. Article I of the Constitution clearly places the power of declaring war in Congress’s hands. Article II places the war-making (or waging) authority in the hands of the President.

As always, let’s look to a Framer’s argument in trying to better understand what they were trying to do. Here is Alexander Hamilton writing in Federalist 69:

The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to theraising and regulating of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature. (Emphasis mine)

I apologize because I don’t have Glenn Beck’s “1776 speak to modern English” translator handy, so the above may have been incomprehensible to you mere mortals. Long story short, Hamilton argues that the Constitution does not give the Executive plenary power to declare war. If any of the Framers would have favored such singular authority, it would have been Hamilton. As it happened, only a single delegate from South Carolina argued during the constitutional convention in favor of enabling the President to declare war. (See Louis Fisher’s testimony for further documentation.) The rest of the delegates argued against resting such powers in the Executive, one of the few times that delegates were so uniformly united.

Now, some of the delegates wanted to go even further and give Congress power over the waging of war. This is where Hamilton, Madison and others argued for this division of duties. The Executive, being a single-headed creature, could act more swiftly and decisively, and so that is why the President was given the title of “Commander in Chief” and the power to wage war as he desired. It’s this singular nature of the office that also allows the President to act unilaterally when America is immediately threatened. No one would rationally argue that the President cannot order immediate air strikes or engage in some military action without Congressional authority when America is threatened.

All that being said, I would agree that the War Powers Act is at best a bad piece of legislation and at worst possibly unconstitutional. Louis Fisher explains why it’s a poor piece of legislation at the link above and also in his book, Presidential War Powers.Though Fisher is someone who believes that the President has usurped Congress’s authority vis a vis war powers, and who also agrees with the sentiment of the War Powers Act, he finds the wording to be a jumbled mess with contradictory messages. The War Powers Act needs to be seriously re-worked in order to more clearly delineate Congressional and Presidential war powers.

Even if the means by which Congress exercises its authority is seriously flawed, Congress is right in trying to assert itself. It is stretching logic to the breaking point to state that the actions in Libya are not tantamount to war because there are no American troops on the ground, or because some other entity is technically leading the military excursion. America cannot engage in a long-standing military conflict without Congressional approval. It is unconstitutional, and frankly tyrannical. Congress must do whatever it can to step in and either assent to the conflict (another topic entirely), or the President must withdraw all forces absent any such approval.

Update: I posted this before I saw John Yoo’s post in the Corner linking to his WSJ editorial. Only the first two paragraphs of the on-line version of his editorial are available for non-subscribers, but fortunately for me I still get (via the office) the old fashioned paper copy. If I may summarize Yoo’s argument without being sued by the Journal, he criticizes Speaker Boehner for citing Article II (the laws must be faithfully executed) in urging President Obama to uphold the War Powers Act. Yoo rebuts Boehner by referring to John Marshall’s declaration in Marbury v. Madison that the Constitution is the supreme law of the land, and that any law contrary to the Constitution is void. There are a couple of problems with this argument.

First of all, as I conceded above, the War Powers Act is a problematic bit of legislation. I said that it is perhaps unconstitutional, though I’m not convinced one way or the other. That being the case, it is the law of the land, and has been upheld in way or the other by all three branches of the government. We may not all like it – and I don’t think anyone really thinks it’s a perfect bit of legislation – but we simply can’t act like it doesn’t exist. If someone wants to mount a Court battle to get it overthrown, more power to them. But so far the Court has not overturned the War Powers Act, and both of the other two branches have given tacit consent to it for nearly four decades.

Secondly, Yoo doesn’t address the larger issue; in fact he completely avoids it. Can the President of the United States declare war or engage in a military conflict (other than an emergency defensive action) without Congressional approval? The answer, according the US Constitution, is clearly no.

Yoo makes much hay about Congressional leadership and President Obama making about-faces on the War Powers Act to suit their needs. Political hypocrisy is nothing new, and I’ll concede that Yoo makes a decent rhetorical point here. But on the larger issue, Yoo is completely off the mark.

Paul Zummo

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Obama criticized Bush for the wars in Iraq and Afghanistan, then he does worse in Libya, and uses the Orwellian phrase, “Kinetic Military Action.” But the main stream media and the proudly liberal won’t see this hypocrisy, or seeing it, won’t acknowledge it.

If the news media acts this way now so far from the 2012 election, then what will happen as the election draws nigh? Is there any hope of defeating this godless man of murder and depravity?

I have no doubt that the War Powers Act is an unconstitional infringement on the powers of the President as Commander in Chief. I also have no doubt that, absent an emergency, any President who goes to war without Congressional authorization is a fool.

The War Powers Resolution seems to be another attempt by the legislature to codify Retroactive Ratification. Alexander Linn suggests that it is a “realigning” of the war powers, that “in passing the Resolution, Congress sought to set parameters on the Executive’s ability to commit military forces to combat. The Resolution codified limitations on the ability of the executive branch to initiate unilaterally or to engage in military hostilities.” The form of the resolution itself suggests that Congress’ efforts were expended more to “define” than “realign.” (Alexander C. Linn, International Security and the War Powers Resolution, 8 Wm. & Mary Bill of Rts. J. 725 (2000).

The Resolution affirms that the President, acting as Commander in Chief, my direct military action after a Declaration of War or with specific Statutory Authorization. Since both of these circumstances are spelled out in the Constitution of 1787, they cannot be a “grant” of such authority to the President. He already has such authorization. Only with the addition of a “national emergency created by an attack upon US interests” did the legislature stray beyond the established grounds of the original constitution.

Congress asserted a check on this last point in that the President was thereafter required to “consult” with Congress “in every possible instance” before deploying troops and regularly through the deployment. Loose construction of the Resolution aside, this last point seeks to capture the breadth of presidential inroads on legislative powers. There is a close corollary to Retroactive Ratification in the consulting requirement, but the up-front determination of when a “national emergency created by an attack upon US interests” occurs. Critically, the limitations proscribe no particular type of presidential war power exercise, not even those exercised against Americans at home such as were illustrated in Korematsu, Kimball Laundry, and Youngstown. Linn suggests that “[n]otwithstanding that the President’s modern control over war conflicts with the Framer’s intent, the problem is not the increase in executive power. There are compelling reasons the Executive to hold a quantum of war power that contradicts the Framers’ intent.” Linn seems to suggest that the Constitution itself is not the benchmark of presidential power. This is to say that our constitutional jurisprudence, however muddled, holds the keys to limiting the powers of a runaway executive.

Even Hamilton would have cringed at that notion.

The War Powers Resolution places on the Executive the burden only that he must report what he has done to Congress within 48 hours and the need for deployment, the constitutional and legislative authority, the scope, and the duration of hostilities thereafter. More significantly, the President receives a 60 day “grace period” during which he can engage in military action without authorization and an additional 30 days if there is an “unavoidable military necessity.” If Congress fails to order the executive to pull back, their acquiescence can go on indefinitely.
It does not appear that the War Powers Resolution places any new burdens on the President since our written constitution and our constitutional jurisprudence already placed similar limits on the executive. Perhaps the Resolution is little more than a touchstone for public discourse. If so, it serves more to subtly illustrate the underlying constitutional principles that the Congress is, by the text of the Constitution, the preeminent institution of government and that, however much presidential powers may lay claim to law making powers, he is still bound by an older order.

Congress only has the power of the purse over the military. The President is clearly commander-in-chief under the Constitution of the military. Congress has no more power to instruct the President as to what may be done with the military than the President has power to compel Congress to appropriate funds for the military. Congress of course, whenever it wishes, has the power to deny funding for specific military operations. Since this is difficult to do politically, we have flapdoodle like the War Powers Act, which is a simple attempt by members of Congress to avoid the heavy lifting of denying funds if they wish to terminate a military operation.

The item that is missing from most every discussion is just what is a “State of War”. A Declaration of War creates a State of War. There has always been lawful armed conflict existing outside a formal State of War. The War Powers Act attempts to deal with involvement in armed conflict outside of a formal State of War.

1. A Sate of War can only exist between two independent countries. Declaring war is recognizing the other party as an independent country. The big example from American History is the Civil War. The North never declared war on the South, doing so would have recognized the legitimacy of the southern states succession. Instead Congress declared the southern states were engaged in an insurgency against the proper government.

2. A State of War is between two countries as a whole every citizen of one is an enemy of the every citizen of the other. Take Libya, whatever the goals are we are supporting a faction in civil war we are not saying that evey Libyan is an enemy of every American.

3. A State of War can only be formally ended by a peace treaty. It is somtes commented that a formal declarion of war is not so much an authorization to fight but a refusal to talk and let the issue be settled by arms.

A declarations of war is clearly inappropriate for intervening in acivil war such as Libya. Given the nature of a State of War, modern nuclear weapons and the wording of the UN Charter formal declarations of war are pretty much obsolete.

The clear meaning of the Constitution is that only Congress has the ability to declare a formal State of War.

Lawful conflict outside of a State of War falls into a rather fuzzy boundary between Legislative and Executive powers. The War Powers act could only work with good faith cooperation between Congress and the President which we don’t have. The problem now is that th President did not seek that coopeation.

I hadn’t thought of that Hank, but wouldn’t it be better if we used a more literal definition of “state of war” as this would probably be more true to the founders’ meaning; keep in mind this is a term they don’t actually use. I can see your point though, about undeclared military excursions throughout early US history.

Thank you. The definition I gave has been customary international law for several centuries, it can’t be ignored and is probably what was meant by the framers since almost all wars then were declared. I think there is in practice a domestic law “state of war” which applies in cases where a formal declaration is not appropriate. The War on Terror and Iraq War resolutions created this for their respective actions, but there is no resolution for Libya. Thus a problem.

Once hostilities commence, Congress has limited authority other than the purse, as Don said. It’s before hostilities commence where Congressional power is at its height, and that’s what I am concerned with here.

Hank raises a good point, worthy of its own post. Modern warfare is certainly something different than what existed at the time of the Framing. So where do we draw the line? To me it boils down to this question: are we comfortable with the Executive taking unilateral action of this nature? Occasional air strikes are one thing, but in this specific situation where America has pledged military support to a long-term (not just a few strikes) military engagement, even if it’s another country’s civil war, Congress ought to approve before we proceed (or continue). No, this is not a declared war in the traditional sense, but it crosses the line into an area where it is within Congress’s legitimate Constitutional authority to intervene.

Being the commander in chief doesn’t mean you have plenary authority to initiate hostilities (the commander in chief of Canada, for example, is Elizabeth II). If you look at the original understanding of the constitution it is quite clear on this point. The President has the authority to repel invasion, but to actually initiate hostilities he needs congressional approval. In practice it hasn’t been that way for a long time, but the same could be said of many other constitutional provisions.

That will do for the understatement of the week! Whatever the initial intention of the Framers was, from the beginning the Constitutional provision granting to Congress the power to declare war has not acted as a restriction on the power of the President to use the military, as amply demonstrated by Presidential use of the military during the first 20 years after the drafting of the Constitution to wage war against Indian tribes, google battle of Fallen Timbers, foreign powers, France and the Barbary Pirates, and internal insurrections, the Whiskey Rebellion. If any of the Framers said a peep against any of this, all done without a formal declaration of war, I am unaware of it. A wise president will make certain that Congress supports such efforts, but it is clearly not required under the Constitution that he obtain such approval from the Congress, let alone seek a declaration of war, before using the military to engage in a war.

This is why I said it’s better seen as 2 separate issues, the academic question of constitutionality and the reality of the de facto law.

On most other issues, one can sue to enforce the Constitution so the academic and the practical are one and the same. But how to conduct foreign affairs is a political question which the courts do not entertain on the merits. It extends, not only to military matters, but diplomatic as well (see, Goldwater v. Carter). Courts have heard and dismissed these kinds of cases before. Scalia, when he was on the DC Circuit, wrote the decision in Sanchez-Espinoza v. Reagan dismissing a war-powers-based challenge to US intervention in Nicarauga on the grounds that it was a “nonjusticiable political question.”